Jul 8, 2013

SAAs, ALJs And OTRs

The SAA [Staff Attorney Adjudicator] Program [also known as Senior Attorney program] has contributed to both an increase in adjudicative capacity and improved average processing time. However, the number of SAA OTRs[On The Records] peaked in FY [Fiscal Year] 2010, and the decline continued through the first 5 months of FY 2013. Overall, SAA and ALJ [Administrative Law Judge] OTRs have been decreasing since FY 2008, consistent with ODAR management’s predictions. In addition, in an FY 2012 quality review, the Office of Quality Performance noticed a significant drop in its decisional agreement rate on SAA OTRs, though the Agency did not have sufficient data to determine whether the issue was specific to SAAs or more broadly related to OTRs. Finally, hearing office managers were interested in additional training and greater duties for their SAAs. Given the expected decline in SAA OTRs, which was the primary purpose of the SAA Program, SSA should decide before any future extension of the program, or expansion of the SAA corps, whether the program needs to be modified to address future hearing office workload needs. ...

The SAA Program has contributed to hearing office productivity and timeliness since its introduction in FY 2008, though SAA OTR decisions peaked in FY 2010. SAA OTR decisions decreased by 31 percent in FY 2012 and continued dropping through the first 5 months of FY 2013. OTR decisions as a percent of total dispositions, whether decided by SAAs or ALJs, also decreased over the same 5-year period, from about 17 percent in FY 2008 to about 10 percent in FY 2012. An OQP [Office of Quality Performance] quality review of FY 2012 SAA OTR decisions found a significant decrease in the decisional agreement rate from prior years. However, the Agency has not conducted similar quality reviews focused on ALJ OTR decisions, so we could not determine whether the quality issues related to SAAs specifically or OTRs in general. ...

Social Security has employed non-ALJ attorneys for decades. They have assisted ALJs, mostly by writing decisions for them. One of their other duties has been to look for cases in which it would be appropriate to do an OTR. OTRs help get favorable decisions out more quickly to the most severely disabled people. The non-ALJ attorney would advise an ALJ that a particular case was appropriate for an OTR and, usually, but not always, the ALJ would agree and the favorable decision would be issued with the ALJ's signature. Social Security decided it would be best to eliminate the middleman -- the ALJ -- and let the attorneys, referred to as Senior Attorneys or SAAs issue the OTRs on their own authority, thereby saving the time that the ALJs had spent reviewing cases identified for possible OTR. ALJs as a group have always objected to SAAs issuing decisions in their own right. Whatever anyone thinks of the SAA program, there's no doubt that the SAA program helped work down the terrible hearing backlogs. Those backlogs are less terrible now but we're certainly not at backlog levels that anyone should be comfortable with.
Why did SAA decisions decrease after 2010? The 2010 election results are the obvious underlying reason but exactly why the change occurred may be a more difficult question. Was it a desire to somehow placate the new Republican majority in the House by approving fewer claims? Was it that then-Commissioner Astrue only used SAA because of pressure from the prior Democratic majority in the House and felt free to wind down the SAA program after Republicans gained control of the House of Representatives? Was it because reduced staffing forced the attorneys to stick to writing decisions for cases ALJs had heard instead of reviewing cases as SAAs? Was it simply because the backlog had come down enough that then-Commissioner Astrue thought that the SAA expedient could be phased out?
I have no idea why OQP found a decrease in decisional agreement. Since there is no gold standard against which to measure SAA or ALJ decisions, I regard any report that OQP produces on decisional quality to be worthless. In any case, I'm confident in saying that there was no real change in SAA decisions. The change was at OQP.
The most interesting question to me is why ALJ OTRs decreased. I can't explain it but I've certainly seen greatly increased ALJ reluctance to issue OTRs in the last three years or so. It's not unusual for me to have a hearing where the ALJ, in effect, tells me before the hearing begins that he or she has already decided to approve the claim. The ALJ wants to make sure I know so I get the hearing over quickly. This seems to be an effort to disguise an OTR. What's the point of this? Are ALJs afraid that if they do too many OTRs that something will happen to them? If so, who or what put this fear in them? What's the threat? To me, this just seems pointless. Some cases are appropriate for OTR, regardless of who the decision maker is. Who wants to slow down the process of approving people who obviously deserve to be approved?

15 comments:

Anonymous
said...

From one ALJ's perspective: The treadmill runs such that I review cases the day before the hearing. If I decide the case is a pay at that time, it is easier and quicker for all concerned for me to issue a bench decision than to decide I am going to pay the case on the record and put it in writing, without, by the way, VE testimony. The fact of the matter is, however, these cases are few in number.

Some ALJs won't pay OTRs due to the West Des Moines incident about 10 years ago. It's a matter of public record, and a tragedy. At that time, the then-HOCALJ reviewed and paid hundreds of cases OTR using one set of VE interrogatories. The VE had given her opinion for one specific case, not knowing that would be cited in hundreds of decisions to support an award of disability. Everyone was happy, especially upper SSA management, until the tide turned. ALJs in a nearby hearing office asked SSA to investigate, got nowhere, then asked the US Attorney to investigate. The day before the HOCALJ was going to have to testify before a grand jury, the HOCALJ was found dead at home. Not content, SSA decided to go after the decision writers and then-HOD and they were fined for each decision written, thousands of dollars total. The Attorney-Advisor union, NTEU, fought the action and ultimately prevailed. Since then, many ALJs have held short hearings rather than expose themselves to accusations of improper behavior.

thanks for outing the ALJ's in your area, Charles. I'm certain an off the record discussion informing a rep that the ALJ has already decided to pay a case won't lead to any type of inquiry at all. Dumbass.

The sharp decline in Sr. Atty. OTRs has nothing to do with the favorable rate of Sr. Attys. and everything to do with how many Sr. Attys were permitted to screen cases and issue decisions. In July 2012, the vast majority of Sr. Attys. were ordered to stop screening and only draft ALJ decsions. Only the VSU Sr. Attys and a few others were allowed to screen since then.

There are few factors at work. Many fewer judges do true pre hearing review anymore before cases are scheduled. Also, because of the overall reduction in hearing wait time, when that review is done the file may only be 3 or 6 months old in the office and look exactly like it did when it was denied at recon. When the hearing wait time was longer and judges not looking at them until they had been sitting for a year or more, there was a greater chance they would contain new evidence to support an OTR.

As an above commenter pointed out, if a judge wants to pay a case that is already imminently scheduled the most efficient thing for the judge to do for the claimant is hold the hearing and issue a bench decision.

Lastly, one of the biggest issues that get a judge a lot of unfavorable management attention is postponing cases, even if the reason for the postponement is paying the case on the record. One of the metrics management is most obsessed about is scheduled to heard ratio. Postponing cases, even to pay them, throws that ratio off and makes it look like the office is wasting hearing slots. As far as management is concerned, this constitutes a grave sin even if it means claimants get decisions faster.

I like the SAA program. If new evidence or a change in the claimant's condition warrants payment, pay the claimant and keep the file off my desk and don't interrupt my review of tougher cases to get me to bless an easy call.

I do few OTR's because there is almost always one or two things I want clarified. As soon as I get the one or two issues clear on the record, I'm done. I most certainly will let a rep know what concern I have and more often than not only the claimant knows the answer.

Who wants to slow down the process of approving people who obviously deserve to be approved?Im not sure if this is a rhetorical question. I have seen a huge slowdown in general at ODAR. ALJ's are holding onto cases for MONTHS even after hearings have been held and it is clear the case should be paid. They are all living in fear and is very sad!

First, many of the cases OTR'd by Sr Atty's would not be OTR'd or even paid by many ALJ's. From what I've seen, many Sr Atty reviews of these cases are minimal (On a related matter, many current ALJs are former high-producing Sr Atty's, which explains the minimal review many of them now do when they hear cases). Also, I've worked in two offices and both of my HOD's, a couple of years ago, when the push for OTR's was hard, expressly told us we needed to pay more cases.

Second, somewhat similar to the difference between cases at the DDS level and the ALJ level, after a Sr Atty denies an OTR and the case moves to an ALJ, the cases typically grow much larger, as the claimant's attorneys typically update their files once an ALJ schedules it for a hearing.

Third, as an earlier post stated, ALJ's who cancel hearings, even for an OTR, disrupts the scheduled to heard ratio, which upsets the Regional Office because they are more concerned with statistics than they are the claimants, themselves -- as are, in my opinion, those ALJ's who dispose of many cases without fully reviewing their files or holding 30-40 minute hearings (As you may have guessed, I do not always write as many decisions as management would like, but I enjoy a reputation in both of my offices for quality work, which I and my ALJs value, and why I will never be selected as an ALJ).

Fourth, the decrease in ALJ OTR's is also a necessary by-product of Sr Atty OTR's. When Sr Atty's OTR all of the easy and some of the questionable cases, it leaves few easy cases for the ALJ's. Then, because the ALJ's have the "tougher" cases, it only makes sense it would take them longer to process them and their production ought to decrease. But, of course, that only applies if the ALJ's are really reviewing the files, which management does not really want any of us to do.

As posted above, for some portions of the past year most SAAs were not allowed to screen cases, and were instructed to just draft decisions.

The reality is, the SAA program only "works" when the SAAs find many cases to pay OTR. If an SAA spends all week screening cases and doesn't find any to pay..well that not only does not help the backload, it hurts it because that atty could have written at least 5 cases. As suggested in the report, it was much easier to find cases to pay when the backload was very large -- these cases had already been well developed and were easy pays that just needed someone to look at them. Now that all the low hanging fruit has been picked, it is much more difficult to find easy pays, especially since lazy reps don't start gathering med records until right before the hearing.

Coupled with that, the stronger emphasis on quality over the past year, as a direct result from the WV debacle, has undoubtedly resulted in more scrutiny of favorable decisions. The days of drafting a 3 sentence fully favorable are over.

Hello, I have a quick question in regards to a Sr. Attorney. I'm a 100% disabled Veteran who was declined in the initial claim process. I have appealed the decision and contacted my Congressman for a congressional inquiry. I received a letter about a week ago saying that my claim is with the Sr. Attorney. Typically is this a good indicator for my side of the claim? And typically how long does it take for them to make a decision? The evidence I submitted was documentation from the VA and is pretty solid. The doctor actually states his opinion saying that my military service conditions would preclude we from all forms of employment including strenuous, light duty and sedentary labor. He also acknowledged that I'm on narcotics for pain relief which affects my cognition. Any help or info would be greatly appreciated. Billy

Hello, I was wondering if you might be able to give me a little insight to the system. I currently was denied SSA. I went ahead and filed an appeal, then contacted my Congressman. I'm currently rated 100% with the VA and the evidence I have submitted to social Security is pretty solid. The congressman's office sent me a letter the other day saying that my claim is with a Senior Attorney. Is this a good sign? And if so typically how long does it take for a Senior Attorney to make a decision? Just to give you a idea of the evidence I submitted was the opinion of the VA Doctor. Stating his opinion He indicates that my service connected conditions would preclude me from all forms of employment including strenuous, light duty and sedentary labor. He also notes in the report that the narcotics I'm taking would affect my cognition. Any thoughts and experience would be appreciated.